NY Extends the Reason for a “Standby Guardian” Designation to Those Potentially Exposed to COVID-19

In New York, an infant’s parent, legal guardian, legal custodian, or primary caretaker [1] is able to designate a “standby guardian” in the event the parent is concerned about a future inability to care for or make decisions for their infant child due to certain identified reasons: death, administrative separation (e.g., anticipated incarceration or deportation), incapacity of the parent, or upon the debilitation and consent of the parent. This standby guardian’s authority is concurrent with the parent’s legal authority (and does not supplant the parent’s authority) and is meant to be temporary, and until the parent regains the ability to care for the infant or until the appropriate Court issues an Order making the guardianship permanent for the best interest of the child.

There are specified requirements that need to be followed for a parent to validly designate a standby guardian, and these requirements are set forth in section 1726 of the Surrogate’s Court Procedure Act, including by means of a written designation signed by the parent in the presence of witnesses (or by another person at the direction of the parent if the parent is physically unable to sign the document, although there are additional requirements if this is necessary).

Given everything going on with COVID-19, and following Governor Cuomo’s Executive Order 202.14, section 1726 of the Surrogate's Court Procedure Act has been temporarily modified to provide that a parent who works or volunteers in a health care facility or who reasonably believes that he or she may otherwise have been or will be exposed to COVID-19 may designate a standby guardian by means of a written designation in accordance with the process set forth in section 1726 of the Surrogate’s Court Procedure Act.

Clearly, this modification was made to allow parents who are more likely to contract COVID-19 or who reasonably believe that they have been or will be exposed to COVID-19 the ability to designate a temporary guardian to care for and make decisions for their infant children in the event they require quarantine or, worse, if the symptoms of COVID-19 cause them to be hospitalized.

Certainly, any parent considering designating a standby guardian should speak to the individual to be designated as the standby guardian to ensure that the individual is in a position and willing to care for and make decisions for the infant. It should be also noted that the better practice is to have both parents execute the designation form; however, if only one parent is available or if there is good reason why the parent designating a standby guardian does not want to involve the other parent, the facts and circumstances supporting the designating parent’s concerns about involving the other parent shall need to be explained in the designation form.

[1] For the ease of reading, “the infant’s parent, legal guardian, legal custodian, or primary caretaker” will be referred to herein merely as “parent”.

If you have any questions about this Legal Briefing, or if you are a parent who works or volunteers in a health care facility or who reasonably believes that he or she may otherwise have been or will be exposed to COVID-19 that wishes to designate a standby guardian by means of a written designation and would like to schedule an appointment, please contact any member of the firm at (585) 730-4773.